Tuesday, May 26, 2009

President Obama has nominated Judge Sonia Sotomayor of the Second Circuit Court of Appeals as his first Supreme Court nominee, and as expected, those across the aisle didn't take long to begin the distortions. First one I saw this morning comes from a local blogger, who after making tasteless prison rape insinuations at the idea of Judge Sotomayor on the highest court in the land, gets to the point:

Sotomayor's take on judicial activism:

"Court of appeals is where policy is made…and I know, I know this is on tape and I should never say that, courts don't [makes scare quotes in the air] make law, I know [growd giggles as she regroups]. I know, I know, I'm not promoting it, I'm not advocating it, I know…

Now I'm pretty sure Mitch hasn't ever taken on any appellate cases, so let's take a look at what it actually is that appellate courts do. First and foremost, they make certain that the trial courts apply the law correctly. They sort out what lawmakers mean when they write the frightful stuff we read in laws drafted at 4:00 a.m. in the waning days of a legislative session. They work to give life to laws and constitutions drafted decades and centuries ago in light of what our world is today. To think that this happens in a vacuum devoid of policy considerations is folly. Sotomayor was describing what happens at every state and federal appellate court in the land, not announcing some radical plot. Anonymous Liberal put it best:

Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.

(Emphasis added.) Courts of Appeals wouldn't be performing their function if they didn't think about the implications of their decisions beyond those of the immediate case.

But unwilling to leave it at one out-of-context, truthful description of a court of appeals doing the job it's designed to do, our local blogger hints what is going to be the crux of attacks on Judge Sotomayor during her confirmation process:

Rumor has it that Sotomayor is so far to the left on the Second Amendment, Amnesty and other issues that the Administration knows she can’t get confirmed, even with the libs' headlock on the Senate. Sotomayor is, so the theory goes, a campaign sop to Latinos.

I am fearful that this is going to be what we see from the minds across the aisle as they go forward in trying to do what ever they can to derail this nomination: rumor. Judge Sotomayor has taken part in exactly one short reported decision where Second Amendment issues arose. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), involved the pro se appeal of a man attacking on constitutional grounds the New York state prohibition on nunchaku. The Second Circuit decision affirmed the trial court's rejection of Maloney's arguments and recognized that the Second Amendment limits federal, not state action. The Second Circuit based its decision on longstanding Supreme Court precedent and did not take any wild view of what the Second Amendment did or did not do. Apparently unwilling to read the per curium (that is, unanimous but not drafted by any specific judge) decision, we instead have our local blogger choosing to rely on rumor.

But the underlying point here is not gun control, it is what we can expect to see in the weeks ahead. Will we allow the debate to be set by a reliance is on unnamed, undisclosed “rumors”, or will we look at the opinions and articles the judge has written and the answers she gives at her confirmation hearings? Time will tell.